Opinion
Case No. 02-ML-1475-DT (RCx).
April 22, 2004
Jason D. Annigian, Attorneys present for Plaintiffs.
Gary Kurtz, Attorneys present for Defendants.
The Court, having considered all documents and heard oral argument, HEREBY RULES AND ORDERS as follows:
1. Under California law, public officials cannot disclose state tax returns, and such returns are privileged, Webb v. Standard Oil of California, 49 Cal.2d 509, 512 (1957); however, this privilege is not absolute. Schnabble v. Superior Court of Orange County, 5 Cal.4th 704, 721 (1993). Moreover, "[federal t]ax returns do not enjoy an absolute privilege from discovery."Premium Service Corp. v. Sperry Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975) (citing St. Regis Paper Co. v. United States, 368 U.S. 208, 219, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961)). Regardless of whether tax returns are privileged or not, "[t]he confidentiality of tax information may . . . be preserved in civil proceedings through protective orders." Stokwitz v. United States, 831 F.2d 893, 897 (9th Cir. 1987). Here, a two tier protective order is in place. Accordingly, defendant Debra Kasirer, individually and as Trustee of the Debra Kasirer Trust, and defendants Robert Kasirer and Canon Realty Corporation (collectively "Kasirer defendants") shall produce all state and federal tax returns for the years 1991 through 1998 to the Betker plaintiffs, no later than April 30, 2004.
2. The Kasirer defendants shall also produce to the Betker plaintiffs their personal separate property agreement regarding the property in Beverly Hills, no later than April 30, 2004.
3. The Court GRANTS the Betker plaintiffs' motion to compel from Debra Kasirer supplemental documents as to requests for production nos. 6, 7, 8, 21, 22, 23, 24, 30, 33, 42, 43, 52, 53 (limited to primary documents), 54 (limited to primary documents) and 55; however, plaintiffs' motion IS DENIED as to requests nos. 44, 51 and 58. The Court also GRANTS the Betker plaintiffs' motion to compel from defendant Robert Kasirer supplemental documents as to requests for production nos. 25, 26, 27, 28, 34, 37, 46, 47, 55, 56 (limited to primary documents), 57 and 58; however, plaintiffs' motion IS DENIED as to requests nos. 48, 54 and 61 to Robert Kasirer. Debra and Robert Kasirer shall produce these documents to the Betker plaintiffs no later than April 30, 2004. In the event Debra or Robert Kasirer has withheld producing any supplemental documents, she or he shall, contemporaneously with providing the supplemental documents, produce a privilege log of the withheld documents that complies with the Amended General Order.
Debra and Robert Kasirer are reminded they have "an affirmative duty to seek that information reasonably available to [them] from [their] employees, agents or others subject to [their] control."Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted). In other words, they must attempt to obtain documents responsive to the Rule 34 requests listed below if they have " actual possession, custody or control [of the documents], or ha[ve] the legal right to obtain the documents on demand" In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis added), cert. dismissed, 517 U.S. 1205 (1996); see also United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) ("Control is defined as the legal right to obtain documents upon demand"). If Debra or Robert Kasirer claims she or he does not have documents responsive to the foregoing requests, that defendant shall file a declaration under penalty of perjury setting forth all steps she or he took to obtain responsive documents and verifying, as in Rule 26(g), that none exist. See National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 554-56 (N.D. Cal. 1987).
In the event Debra or Robert Kasirer does not actually possess certain responsive documents, which may be in the custody of banks or other financial institutions with whom they transacted business during the relevant time period, they must seek to obtain those documents from such institutions.
4. The Betker plaintiffs' motion for attorney's fees under Rule 37(a)(4) IS GRANTED, and Debra Kasirer, both individually and in her capacity as trustee of the Debra Kasirer Trust, and Robert Kasirer, individually, ARE JOINTLY ORDERED to pay $6,000.00 in sanctions to the Betker plaintiffs, no later than May 6, 2004.
Plaintiffs ARE ORDERED to serve this Order electronically on all parties.